Partly allowed

Khem Chandra (Assistant Teacher) v. State of U.P. and 3 Others

Allahabad HC23 May 2023WRIA/4671/2023

Case brief

AI extract

What is this about?

The Allahabad High Court set aside an order terminating an Assistant Teacher's services. The Court held the District Officer failed to act on a prior 2019 judgment requiring fresh examination of the case. The petitioner is directed to pass fresh orders considering dying-in-harness rules and RTE Act provisions.

What did the court decide?

The order dated 17.02.2023 terminating petitioner's services is set aside. Distt. Basic Education Officer directed to pass fresh orders within eight weeks.

Khem Chandra (Assistant Teacher) Vs State… — Labour and Industrial Disputes | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:125135

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Court No. - 36

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Case :- WRIT - A No. - 4671 of 2023

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Petitioner :- Khem Chandra (Assistant Teacher) Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabhakar Awasthi,Chandra Shekhar Singh Counsel for Respondent :- C.S.C.,Nand Kishore Singh

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Hon'ble Ashutosh Srivastava,J.

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Heard Sri Prabhakar Awasthi and Sri Chandra Shekhar Singh, learned counsel for the petitioner, learned Standing Counsel representing the State Respondents and Sri Nand Kishore Singh, learned counsel representing the Respondent Nos.2, 3 & 4.

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Challenge in this writ petition is to the communication dated 14.01.2023 issued by the Secretary, Basic Shiksha Parishad and consequential order dated 17.02.203 passed by the Respondent No.3, District Basic Education Officer, directing termination of services of the petitioner on the post of Assistant Teacher.

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The brief facts of the case leading upto filing of the instant writ petition are that the father of the petitioner, who was working as Headmaster in Primary School, Rithuta, Block Gohand, District Hamirpur died-in-harness on 14.07.2013. The petitioner applied for appointment as Assistant Teacher under the dying-in-harness Rules. The petitioner at the time of applying for appointment under dying-inharness Rules, possessed Master of Arts (M.A.), B. Ed. (C.T.E.T.) qualifcation. The petitioner on the aforesaid basis was issued appointment letter dated 27.05.2014 as an untrained Teacher. The petitioner joined his duties on the post of Assistant Teacher at Primary School, Bilgaon Naveen Block Gokand, District Hamirpur.

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Thereafter the petitioner was permitted to undergo Special B.T.C. Course from 01.10.2014 and passed the same on 12.12.2017. The petitioner moved an application dated 16.03.2018 for getting the salary of trained teacher. Thereafter the petitioner was issued notice dated 18.05.2018 stating that the appointment of the petitioner on the post of Assistant Teacher is not in conformity with the Rules. Vide order dated 16.11.2018 the District Basic Eduction Officer, conferred salary of a trained Assistant Teacher in favour of the petitioner. However, the order dated 16.11.2018 was withdrawn by the District Basic Education Officer vide order date 20.11.2018. The order dated 20.11.2018 passed by the District Basic Education Officer was put to challenge before this Court in Writ (A) No.6271 of 2019. This Court disposed of the writ petition vide its order dated 20.05.2019 with following observation:-

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"A perusal of Clause '4' of the Government Order dated 1st December, 2018 indicates that in view of Rule 8 of U.P. Basic Education (Teachers) Services (22nd Amendment) Rules, 2018, the Teachers Eligibility Test being conducted by the Central Government at primary level is an approved qualification for appointment to the post of Assistant Teachers in the State of U.P.

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The applicants who had participated in the Assistant Teacher Recruitment Examination-2019 on the basis of the aforesaid eligibility test are held eligible.

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For the said fact, training qualification possessed by the petitioners at the time of appointment on the post of Assistant Teacher, cannot be said to be inadequate.

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However, the matter requires examination at the ends of the District Basic Education Officer, Hamirpur.

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The claim of the petitioner is, therefore, referred for fresh examination in the light of the Government Order dated 1st December, 2018 and the fact that the petitioner had passed eligibility test conducted by the Central Board of Secondary Education, Delhi in the month of February, 2014 and possessed the said qualification on the date of his appointment i.e. 27th May, 2014.

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The order dated 20.11.2018 under challenge in the present writ petition, will be subject to the fresh order being passed by the District Basic Education Officer, Hamirpur, within a period of four weeks from the date of submission of certified copy of this order. It goes without saying that if required, an opportunity of hearing be also provided to the petitioner.

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The writ petition is disposed of."

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However, pursuant to the order dated 20.05.2019, no orders were passed by the District Basic Education Officer. Meanwhile, the petitioner cleared UPTET on 08.04.2011. The petitioner moved a representation date 06.07.2022 before the District Basic Education Officer claiming salary as Trained Assistant Teacher. The District Basic Education Officer sought instructions from Secretary, Basic Shiksha Parishad, Prayagraj, vide letter dated 25.08.2022. However, when the claim of the petitioner was not decided, the petitioner again approached this Court by filing Writ (A) No.18153 of 2023. This Court passed the following orders on 11.01.2023.

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"Put up on 16.1.2023 at 12:30 P.M.

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In the meantime, learned counsel for the Secretary, Basic Education Board, U.P. shall seek instructions that what action has been taken in pursuance of the request of District Basic Education Officer, Hamirpur dated 25.8.2022 (Annexure No.15 of the writ petition)."

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Pursuant thereto a communication dated 14.01.2023 was sent by Secretary, Basic Shiksha Parishad, Prayagraj, to District Basic Education Officer, Hamirpur, directing the District Basic Education Officer to show cause as to why required action was not undertaken by him in pursuance of the Circular dated 12.06.2012 issued by the Basic Shiksha Parishad and also directed for taking further action.

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Consequently, the order dated 17.02.2023 was passed by the District Basic Education Officer, Hamirpur, directing termination of services of the petitioner. Both the communications dated 14.01.2023 and 17.02.2023 are under challenged before this Court.

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The learned counsel for the petitioner contended that the communication dated 14.01.2023 is the result of the anguish of the Secretary, Basic Shiksha Parishad, Prayagraj and the order impugned has been passed by the District Basic Education Officer under the dictates of the Secretary, Basic Shiksha Parishad, which is unsustainable and deserves to be set aside.

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Per contra, learned counsel for the State Respondents supported the order impugned on the basis of the instructions and reasons given in the order impugned stating that the petitioner did not possess the requisite qualification and also the appointment of untrained teacher was barred in view of the provisins of the RTE Act, 2009.

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This Court passed the following orders on 11.04.2023.

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"Heard Shri Prabhakar Awasthi, learned counsel for the petitioner, learned Standing Counsel for State-respondents and Shri Nand Kishore Singh, learned counsel for respondent Nos. 3 and 4.

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The order under challenge is an order dated 14.1.2023 passed by respondent No. 2, the Secretary, Basic Shiksha Parishad, Prayagraj as also the order dated 17.2.2023 passed by the District Basic Education Officer, Hamirpur whereby the appointment of the petitioner as Assistant Teacher has been cancelled on the ground that the petitioner does not possess the requisite TET certificate.

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Shri Prabhakar Awasthi, learned counsel for the petitioner vehemently submits that the impugned order proceeds on an incorrect premise inasmuch as the petitioner possesses the requisite certificates and besides that the order impugned has been passed behind the back of the petitioner without giving him adequate opportunity to explain the qualification possessed by the petitioner. He submits that the averments to this effect has been clearly made in Paragraph 23 and 24 of the writ petition.

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Shri Nand Kishore Singh, learned counsel representing the respondent prays for and is granted 10 days time to seek instructions in the matter particularly, with regard to the averments made in Paragraph 23 and 24 of the writ petition.

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List this case as fresh on 24.4.2023."

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Pursuant thereto instructions have been obtained by the learned counsel representing the Respondent Nos.3 & 4 on the basis of the instructions, the learned counsel for the Respondent Nos.3 & 4 submits that order dated 17.02.2023 was passed in light of the directions contained in communication dated 14.01.2023.

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Heard learned counsels for the parties and perused the record.

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This Court finds that the District Basic Education Officer, Hamirpur, was directed vide order dated 20.05.2019 to examine the case of the petitioner in light of Clause 4 of the Government Order dated 01.10.2018 which provides that in view of the Rule 8 of the U.P. Basic Education (Teachers) Services (22nd Amendment) Rules, 2018, the Teachers Eligibility Test being conducted by the Central Government at Primary Level is an approved qualification for appointment to the post of Assistant Teacher in the State of Uttar Pradesh.

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This Court finds that the District Basic Education Officer, Hamirpur, failed to consider the order dated 20.05.2019 passed by this Court and pass an appropriate orders pursuant thereto. However, instead he proceeded to pass an order terminating the services of the petitioner on the directions of the superior officer, which is not sustainable in the eyes of law. Thus the order impugned dated 17.02.2023 passed by the District Basic Education Officer, Hamirpur, is liable to be set aside and is hereby set aside.

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The District Basic Education Officer, Hamirpur, is directed to pass fresh orders in light of the directions contained in order dated 20.05.2019 passed in Writ (A) No.6271 of 2019 and taking into consideration that the petitioner was given appointment under the dying-in-harness Rules, 1974 which is a beneficial legislation/ provisions of Part IV of the RTE Act, 2009, within eight weeks from the date of submission of a certified copy of the order of this Court before him.

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The writ petition is partly allowed.

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Order Date :- 23.5.2023 pks

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Digitally signed by :- PAWAN KUMAR SINGH High Court of Judicature at Allahabad

Khem Chandra (Assistant Teacher) v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Khem Chandra (Assistant Teacher) v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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